In cases where the intended move is extremely far away – across the country or overseas – both parents involved should consult with an Indiana child custody attorney because the ramifications of such a move can be major. The court cannot prohibit someone from moving, but it can restrict a parent from taking the child with them. And in the event you are the non-custodial parent, it’s important to consult with a lawyer if you wish to oppose an ex-spouse’s move or modify an existing custody arrangement. Failure to do so in a timely manner could complicate your case, and taking matters into your own hands could put you at a legal disadvantage.

Take the recent case of Martinez v. Cahue, an appeal before the U.S. Court of Appeals for the Seventh Circuit, which has jurisdiction over all of Indiana. This was a case involving an appeal from the U.S. District Court for the Northern District of Illinois, Eastern Division. According to court records, a young boy lived exclusively with his mother up until the age of seven, although his father lived nearby and saw him often. Mother and father had their own custody, visitation, and support arrangement, though it was never formalized by a court order. Then, when the boy turned seven, his mother moved to Mexico, her native country, and he went with her.more

About a year later, his father persuaded his mother to allow him to return to Illinois for a visit. However, after the agreed-upon time, the father refused to allow the boy to return to Mexico.

His mother then petitioned the federal court for his return under the Hague Convention on Civil Aspects of International Child Abduction, to which both the U.S. and Mexico are parties.

The district court found that the boy’s habitual residence should not be shifted to Mexico, and thus Illinois was the boy’s habitual residence. With that, the mother’s petition was dismissed. But on appeal, the justices found that the district court had asked the wrong question, and therefore reached an erroneous conclusion. The lower court had overlooked the fact that at all times relevant, the mother had sole custody of the boy under Illinois law, while the father had no right of custody under either state law or the Hague Convention. What that means is that it was only the mother’s intention that mattered, and in this case she intended for her son’s habitual residence to be in Mexico. This means the father’s decision to keep the child in Illinois against the mother’s wishes was wrongful and he was required to return him to his mother in Mexico.

This doesn’t mean the father has no right whatsoever to see the child. In fact, under the Hague Convention, he does have the right to visitation with his son. But the problem was that he went about exercising his right in the wrong way. Illinois law presumes that the mother of a child born out-of-wedlock has sole custody of that child, and absent a court-ordered visitation schedule she was not constrained by either state law or the Convention from taking her son to relocate wherever she wished. Joint custody isn’t something that arises automatically. It has to be granted by the court.

In this case, the court noted the father had conversations with a family law attorney and state department personnel at which point he became aware of his legal rights and remedies. However, he declined to pursue them and then took advantage of the mother’s good faith when she agreed to a visit. The court ruled that rewarding the father’s “self-help strategy” in this case would have a damaging effect on the intended deterrent of such action as laid out in the Convention.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Martinez v. Cahue, June 24, 2016, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Andrick v. Andrick – Indiana Child Custody Modification Order Affirmed in Part, Remanded in Part, May 20, 2016, Hammond Child Custody Lawyer Blog

One that Hammond family law attorneys sometimes see crop up is when one parent becomes involved with a new paramour, be it a boyfriend or girlfriend or a new legal spouse. It may be uncomfortable for the ex-spouse; beyond that, it could mean changes in the previously agreed-to parenting plan. That’s why it may be wise to avoid inviting new love interests to spend extensive time with one’s children until the developing relationship becomes more serious.

There have been a significant number of cases in which a parent will apply to limit the amount of exposure children have to their ex-spouse’s new boyfriend or girlfriend. In some cases, this desire arises out of legitimate concern, either a fear that the child will form too close an attachment too quickly, or a worry about the child’s safety due to the paramour’s history. In other instances, it’s simply done out of spite or jealousy. more

In either case, it can have a significant impact on the outcome of a child custody case. Take for example the recent case of Nolan v. Huff, before the Indiana Court of Appeals.

Here, according to court records, the parties were married in 2003 and have twins, born in 2010. Father filed for divorce in 2012. At some point during the divorce proceedings, the father began dating a woman, “Kim.” Soon after, Mother began dating Kim’s then-husband, “Tony.”

By the fall of 2013, both parties had worked successfully through mediation, and it was agreed by both sides that neither parent’s significant other would be left alone with the children without the parent being present. When the divorce was finalized, it was also determined that the mother’s boyfriend was not to live with the mother (with whom the children primarily resided) and Tony was not to be alone with the children. Father was given parenting time in excess of Indiana Parenting Time Guidelines.

Two months later, Mother filed a motion to relocate, seeking permission to move across the state to be closer to her parents and asking that her boyfriend be allowed to live with her. In response, Father opposed that motion and alleged the boyfriend was already living with her in violation of the decree.

At a hearing, the woman said the boyfriend stayed overnight at her home 3 or 4 nights a week, but it was not his legal residence. At that hearing, Kim also testified to the court that her still-husband had anger and violence issues and had raped her more than 20 times over the course of 18 months when she refused him sex. She also said he was violent with their own children.

The court ultimately granted Mother’s request to relocate, but found in her in contempt of court for allowing her boyfriend to live with her in violation of the order, citing her “blatant disregard” for it. The penalty for that was taken under advisement, but the court did award father more parenting time.

Mother appealed, arguing parenting time should not have changed, as neither party had requested it. The appeals court affirmed, noting that the mother impliedly consented to having custody considered when she petitioned the court to relocate, and the court was entitled to consider all matters before it.

This case reveals why parents must tread carefully when it comes to bringing a significant other into their lives in the midst of child custody disputes.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources:

Nolan v. Huff, May 20, 2016, Indiana Court of Appeals

More Blog Entries:

Andrick v. Andrick – Indiana Child Custody Modification Order Affirmed in Part, Remanded in Part, May 20, 2016, Hammond Family Law Attorney Blog